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Demonizing Dissent

by Kit Gage

First published by Independent Politics News of IPPN, Spring 2001 Updated August 2001

People forget that hardly anything is scarier to our, or perhaps any, government than political dissent. It seems that peaceful noisy dissent is the most bothersome, perhaps because it's more complicated to stop. This has been true for hundreds of years in the U.S., and well documented from the time of the Palmer raids early in the 20th century. The FBI really was founded to try to go after those pesky immigrants who sought a 6 day work week and an 8 hour work day. The FBI and local police have been doing that kind of work ever since, alongside of fighting actual crime.

Not infrequently, the U.S. gets particularly exercised by international connections. New immigrant groups come to the U.S., and repeatedly have found themselves targeted for various reasons. For Salvadorans, black South Africans, Palestinians and many others, part of what led to their surveillance was their support for a liberation movement in their homeland. Because those particular liberation movements were not consonant with U.S. foreign policy, they were the object of investigation, demonization, deportation, exclusion and worse.

Immigrants (remember Emma Goldman) had been deported earlier in the century for protesting U.S. entry into World War I, and for espousing the then new communist or anarchist ideology. Later, the McCarran-Walter law and other laws led to the deportation of non-citizens for membership in organizations, and outlawed others from entering the U.S. because of similar membership in organizations and beliefs, and was particularly enforced post-World War II.  

"Terrorists" Replace "Communists"

After McCarran-Walter was finally abolished in 1994, it was quickly supplanted by the Antiterrorism and Effective Death Penalty Act (AEDPA), signed in 1996. Anti-communism was replaced by anti-terrorism. In the few years before AEDPA was passed, the government had passed executive orders and guidelines and started introducing bills concerning "terrorists" and "foreign terrorist organizations and countries." These laid the intellectual groundwork for the transformation to a focus on anti-terrorism as the Soviet Union was collapsing, and therefore the object of our enmity had to be modified.

As part of its modified arsenal against terrorists, the government decided that it should and could finally codify the use of secret evidence in deportation related proceedings, rather than continue to rely on some slightly off-point cases and regulations. As well, it criminalized contributions of humanitarian aid knowingly given to specific designated "foreign terrorist" groups. That designation process has made it quite clear that the U.S. uses politics and diplomacy to decide who among hundreds of groups involved in various levels of violent dissent in their countries is going to get the label "foreign terrorist organization." You have not heard of this last law probably, but the U.S. is now prosecuting two cases, one in North Carolina and the other in California. This will become a major First Amendment fight.

On the other hand, secret evidence already has been used more extensively. In the last 10 years or so, the Immigration and Naturalization Service claims to have used it against about 28 people. It has not used new law, rather it relies on old McCarthy era case law and regulation to violate the constitutional right of due process. People - largely Arabs and Muslims - have been held in jail for up to 4 years, denied bond using evidence they and their lawyers cannot see.

In almost every case, when the individuals are arrested, the government calls them terrorists and claims they have committed heinous acts. But rather than charge them with these crimes, the government instead tries to deport them.

The individuals, lacking specifics, find it impossible to rebut the evidence or counter faceless witnesses. When pressure has been brought to bear, and significant evidence released, many of these individuals are able to disprove the evidence. Most have won their cases after many years, and only one Sikh man remains detained through the use of secret evidence. The National Lawyers Guild has been critical to building a unified legal defense strategy in these cases. The Secret Evidence Repeal Act - which would outlaw use of secret evidence almost entirely, got strong support in the last Congress and is now being reintroduced.

The organization of the National Coalition to Protect Political Freedom has made a huge difference. Arab American and Muslim communities in the U.S. that felt chilled and isolated because of the targeting, the use of secret evidence, FBI interviews in the community, and grand jury investigations, now recognize they have support outside their communities from across the country. They have begun to hear of the history of this abuse, and to feel the power of a cross-ethnicity and race alliance, and of strong legal support. Our strength has been the focus on the right of any group to express its politics and its views publicly without criminalization. The blurring by the government of First Amendment activity and criminal behavior is much more blatant today than in recent decades and requires stronger organizing to combat.  

Stepped Up Domestic Repression

Domestically, the government has stepped up its assault against homegrown dissent - as anyone who was part of Seattle, April 16 and the inaugural in DC, Philadelphia and Los Angeles knows. Likewise, those who read about or viewed it, particularly on the alternative media like Independent Media Center that covered it from the ground saw the spectacle of military style police assault.

But we should step back a minute. The stage has been set for this domestic law enforcement assault in a couple of ways. Following COINTELPRO - FBI and police attack against dissent in the 1950s 1960s and 1970s, Attorney General guidelines were toughened, civil suits against city police resulted in prohibitions against First Amendment based investigations (Red Squad suits).

In the last years those guidelines have been loosened, the Antiterrorism Act removed a provision in the 1994 crime bill outlawing First Amendment-based investigations by the FBI, and the FBI has worked actively with police around the country to void the limitations from the lawsuits. The FBI argues openly (if not exactly shouting from the rooftops) that it cannot investigate terrorism if it is shackled from collecting information on peoples' beliefs, memberships, and peaceful protests. And so it is unshackling itself.

Many of you know that technological advances have helped the FBI and police as well. It's easier to collect information clandestinely. You no longer can hear the bugs on the phone or detect them; there is a broader array of gas, stun devices and etc. Cameras are littler, and aerial surveillance is more exact. And the old tried and true techniques remain in place: infiltration of groups, mass arrests, intimidation by brute force, advance disinformation about the nature of the protest leaked to the press.

There are three goals of these law enforcement activities. The first is to stop you from protesting or speaking out or marching or complaining generally - the chilling effect. The second is to get you out of circulation for specific events, to limit your activity at the events, and to distract the public from your protest by connecting any violent activity with the whole group - discrediting effect. The last is to stop the movement - by continuing arrests, limits on activity and travel, major overblown charges it takes huge legal teams and maybe a bunch of money to fight, and again disinformation in the press - this is the neutralization.

Knowing the intent, the underlying theory, and the tactics and strategies, gives us power. We know better what we're facing. We can be impressed by the array of force, but need not fear it as the unknown. We can mostly avoid being chilled, discredited and neutralized by keeping on top of the technology, sharing information around the movement about law enforcement strategies and tactics, and being public about our work, our movement, our intent. We too can use the press. We can use the law to stop the most predictable illegal tactics. We are allied through the National Lawyers Guild and its new Mass Defense National Committee with the progressive legal movement to try to limit the jail time and egregious treatment. We can also pay our parking tickets, not say stupid stuff on the phone and otherwise not give anyone an irrelevant reason to sidetrack us. If we are scared off, they win.

Ultimately, our best weapon is the power of our movements for peoples' rights. We can keep getting that information, that cause out to the public - in our myriad ways. When the pictures show a huge force arrayed against a wall of just us, one putting a flower into the muzzle of the gun, we win.

The government tried to portray its use of secret evidence as necessary to pursue terrorism, thinking that would provide cover. Instead the movement against secret evidence recognized this was instead a constitutional issue. We set about to prove that, and went to the press, to communities and organizations across the country, and even to the Congress and many others in government. All the editorials have recognized this as a due process issue. Almost everyone else has as well. Hard work, a broad coalition, and fearless consistency are winning the day. Now we have to bolster the dented First Amendment. It will be a longer fight, but one we must win.

The effort to retake the First Amendment must be joined by immigrants seeking their full rights, working together with homegrown citizen movements advocating political change. These diverse constituencies will be more convincing because they not only espouse particular causes, but because they are seeking to strengthen the full range of peoples' rights - to put full-throated dissent in the mainstream where it belongs.

Kit Gage

Executive Vice President, National Lawyers Guild Executive Director, First Amendment Foundation and NCARL - the National Committee Against Repressive Legislation National Coordinator, National Coalition to Protect Political Freedom